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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, January 4, 2016

Landlord loses constitutional claim against Long Island village

This landlord got into a major fight with the Village of Patchogue, on Long Island. That dispute led to a federal lawsuit under the First Amendment and other constitutional provisions. In the end, the Village wins. Along the way, we learn something about First Amendment retaliation and the constitutional tort of "abuse of process."

The case is Mangino v. Village of Patchogue, decided on December 22. Plaintiff owned an apartment building and obtained a rental permit that expired at some point, though plaintiff continued to rent out the apartment. The Village issued criminal summonses in connection with the expired rental permit, and Village prosecutor supposedly threatened plaintiff that he would be hit with more summonses if he did not settle this lawsuit. A tenant then complained to the Village that the apartment had electrical problems.When inspectors showed up, they found no such problems but discovered instead other potential hazards in the basement. Plaintiff was then hit with a bunch o' summonses over these problems, including ones relating to the failure to renew the rental permits. Parts of the claim got dismissed on summary judgment, and a jury rejected the rest at trial.

Reading the statement of facts in this case, it's hard to see where the potential constitutional claims fit in. But there is a First Amendment claim here. The Court of Appeals (Cabranes, Newman and Winter), however, says there really is no First Amendment case. Plaintiff says the Village initiated the criminal prosecutions in retaliation for his speech. But the Second Circuit notes that probable cause to arrest defeats a First Amendment retaliation claim. While plaintiff says the ticket was written a day before he allegedly committed any crime, that does not matter. "We find unpersuasive Mangino's position that 'whether probable cause existed for the issuance of [the ticket] should be determined by the circumstances at the time the summons was issued' -- by which he means at the time the summons was written -- and 'not when the summons was served and filed." When it was served and filed, the Court says, there was probable cause.

Plaintiff raises another First Amendment retaliation claim, alleging that the Village improperly charged him with disregarding fire hazards and issued a Fire Prevention Violation Order. Yet, plaintiff does not dispute that he committed the violations upon which the charge was based. "While it may be true that, at least under certain circumstances, a plaintiff can prove First Amendment retaliation even if the measures taken by the state were otherwise justified, he may do so only if he can show that the defendant, for improper motive, took regulatory action that was significantly more serious than other action he had discretion to take. Here, Mangino has not made any argument that the issuance of the FPVO was significantly more serious than other action Poulos had discretion to take."

Plaintiff also has an abuse of process claim against the Village. Claims like this allege that someone dragged plaintiff through the legal system for no good reason. But the law is not clear whether probable cause defeats an abuse of process claim. The courts in this Circuit are all over the place on this issue. Which means the individual defendants get qualified immunity from suit, as they could not have been expected to know they were violating plaintiff's rights when they treated him this way.